Gregori v. United States, 16363.

Decision Date05 April 1957
Docket NumberNo. 16363.,16363.
PartiesJonathan GREGORI, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Jonathan Gregori, Springfield, Mo., in pro. per.

E. Coleman Madsen, Asst. U. S. Atty., Jacksonville, Fla., for appellee.

Before TUTTLE, JONES and BROWN, Circuit Judges.

PER CURIAM.

Appellant was indicted on the charge of transporting a woman in interstate commerce in violation of the White Slavery Act, 18 U.S.C.A. § 2421, from Fort Worth, Texas, to Jacksonville, Florida.1 At the trial, at which he was represented by counsel, evidence was introduced that he had transported the woman from Farmington, New Mexico, to Jacksonville, with a stop in Dallas, Texas. His counsel filed a motion for a new trial, asserting six grounds, none of which challenged the indictment as defective or claimed any variation between the indictment and the proof. After sentence notice of appeal was filed, but no appeal was prosecuted.

Appellant filed this motion to vacate his sentence under the provisions of 28 U.S.C.A. § 2255, because of the defect in the indictment. The district judge, who had presided at the trial, held that in view of the above facts, and noting that Dallas and Fort Worth are only 37 miles apart, appellant had not shown that this slight variance could conceivably have prejudiced him, and that since it appeared conclusively from the files and records in the case that appellant is entitled to no relief he denied the motion.

We fully agree with the district judge that there is no substance to appellant's complaint. The indictment was sufficient to inform him of the charge he was to meet at the trial and it is certain that he could plead the present conviction as a bar to any further prosecution growing out of the same transportation, whether from Dallas or from Fort Worth. The indictment is thus sufficient to have withstood any direct attack that might have been made at the trial or appeal.2 A fortiori, on a collateral attack under 28 U.S.C.A. § 2255 exceptional circumstances must be shown for the vacation of a sentence on the basis of a defective indictment, e.g. if it be shown that the indictment does not allege an offense under any reasonable construction.3

The variation between the indictment and the proof alleged in the motion is so slight and so plainly not prejudicial to any substantial right of the petitioner that courts are precluded from noticing it. Rule 52(a), Fed.Rules Crim.Proc., 18 U.S.C.A.; 28 U.S.C.A. § 2111.4

The denial of appellant's motion is hereby

Affirmed.

1 The indictment read as follows:

"That on or about the fourth day of December, 1954, Jonathan Gregori did knowingly transport and cause to be transported in interstate commerce, a woman or girl, to-wit, Gwendolyn, Lnu, by means of a common carrier, to-wit, an airplane, from Fort Worth, in the State of Texas, to Jacksonville, in the Southern District of Florida, for the purpose of prostitution and debauchery; in violation of Title 18, United States Code...

To continue reading

Request your trial
12 cases
  • Gay v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 27, 1969
    ...States, supra, rather than Stirone v. United States, supra, governs this case. A similar variance was held harmless in Gregori v. United States (C.A.5) 243 F.2d 47. In the Gregori case the indictment charged unlawful transportation of a woman in interstate commerce from Fort Worth, Texas, t......
  • Harris v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 14, 1961
    ...(United States v. Shelton, 7 Cir., 1958, 249 F.2d 871; McGann v. United States, 4 Cir., 1957, 249 F.2d 431; Gregori v. United States, 5 Cir., 1957, 243 F.2d 47) it is no greater under habeas corpus than under § Defendant's plea of guilty was an admission of his guilt and a "waiver of all no......
  • Jackson v. United States, CA-4-63-138.
    • United States
    • U.S. District Court — Northern District of Texas
    • January 2, 1964
    ...a collateral attack. A prisoner cannot use 28 U.S.C.A. § 2255 as a substitute for appeal. Sufficiency of indictment: Gregori v. United States, 5 Cir., 1957, 243 F.2d 47, citing Brassell v. United States, 5 Cir., 1955, 223 F.2d 259, Brant v. United States, 5 Cir., 1955, 218 F.2d 808, Barnes ......
  • Gregori v. United States, 16218.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 5, 1957
    ...disposition of another motion to vacate sentence under the provisions of 28 U.S.C.A. § 2255 brought on different grounds, see Gregori v. United States, 243 F.2d 47. 2 "§ 4245. Mental incomptency undisclosed at "Whenever the Director of the Bureau of Prisons shall certify that a person convi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT